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MONROE COUNTY CLERK’S OFFICE

THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

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Return To:
THOMAS STANLEY BERKMAN

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No. Pages: 27
Instrument: EFILING INDEX NUMBER
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New York State Department of Environmental Conservation

International Joint Commission

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State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
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STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
ADAM J BELLO
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
______________________________________________
NEW YORK STATE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION,
Plaintiff,

VERIFIED COMPLAINT

-against-

Index No. _______________

INTERNATIONAL JOINT COMMISSION,
Defendant.
______________________________________________
Plaintiff New York State Department of Environmental Conservation (“Plaintiff”), for this
complaint against Defendant International Joint Commission alleges as follows upon information
and belief:
INTRODUCTION
1.

For two out of the last three years, catastrophic flooding has laid waste to the New

York communities on the shores of Lake Ontario. Months of extreme water levels have
destroyed residences, swept away large swaths of the shoreline, upended the lives of thousands
of New York citizens and businesses, and wrought millions of dollars in damage on State
property. The State of New York and the New York State Department of Environmental
Conservation (“DEC”) expended millions of dollars responding to this flooding.
2.

The persistent high water levels—and the devastation they have caused to State

property, including that of the DEC—are the direct result of the International Joint
Commission’s (“IJC”) tortious mismanagement of Lake Ontario’s water levels. The IJC must
answer for its wrongful conduct.

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For more than half a century, the IJC has been responsible for regulating the flow

of water across the Moses-Saunders Power Dam, a dam constructed in the 1950s at the neck of
the St. Lawrence River, on the U.S.-Canadian border.
4.

At the end of 2016, the IJC promulgated a new regulation plan—called Plan

2014—claiming that changes to the way the IJC had managed water levels for the preceding six
decades were needed to account for environmental factors and climate change. Plan 2014 sets
forth formulas and parameters for the outflows of water from the Moses-Saunders Power Dam.
Only if the water level reaches extreme high or low levels—known as “trigger levels”—may the
IJC deviate from those prescribed formulas. The IJC acknowledged that Plan 2014 would cause
a minor increase in flooding and erosion around Lake Ontario, especially on the southern shore,
but assured the public that these harms would be eclipsed by the benefits of its new plan.
5.

Nothing could have been further from the truth. Just weeks after Plan 2014 went

into effect, the Lake Ontario region experienced heavy precipitation. Over the subsequent weeks
and months, water levels on Lake Ontario rose to record levels, prompting the State to declare a
state of emergency for affected counties.
6.

But the IJC’s response was sluggish. The water level surpassed trigger levels in

April, but not until late May—when Lake Ontario had risen to levels not seen since
recordkeeping began in 1918—did the IJC finally invoke its authority to deviate from the
formulas and parameters in Plan 2014 and attempt to address the flooding around Lake Ontario.
By then, thousands of New York property owners had already suffered severe erosion, loss of
vegetation, and other flood damage. The State itself, including DEC, sustained more than $4
million in property damage—some of which it still has not been able to fully repair.

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In the months after the historic floods, the IJC appeared to recognize the need for

analysis of Plan 2014 and how best to respond to extreme events to prevent future damage of a
similar magnitude. But the IJC made no changes to its approach to regulating the water levels of
Lake Ontario.
8.

The IJC’s lethargy brought a fresh round of misery to New York citizens and the

State on the shores of Lake Ontario just a year later. The waters had receded and the
communities had barely begun to recover from the 2017 floods when, in early 2019, heavy
precipitation drenched the Lake Ontario region. Water levels rose yet again, quickly surpassing
the records set in 2017.
9.

But the IJC robotically and tortiously followed the same course that had caused

disaster two years prior, adhering to the Plan 2014 formulas long after the high water trigger
levels had been reached. And even when it did finally deviate from Plan 2014 in late spring
2019, the IJC capped outflows at the maximum level attained in 2017—even though greater
outflows were entirely feasible and would have brought swifter relief to the New York
communities on Lake Ontario. The IJC justified this imposition on New York State by
espousing the economic interests of the commercial shipping industry.
10.

As in 2017, the IJC’s mismanagement of the water levels in 2019 caused serious

harm to New York communities on Lake Ontario, shuttering businesses, damaging property, and
eroding large portions of the shoreline, including in Monroe County.
11.

The DEC recognizes that the water levels on Lake Ontario are in part a function

of natural conditions, and that to expect the IJC to prevent all flooding—particularly in the face
of climate change—is unrealistic. The DEC also recognizes that the IJC must balance multiple
factors in managing outflows, including the interests of upstream and downstream riparian

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owners, environmental concerns, and navigation and power. But the key word is “balance.” The
IJC cannot saddle the State with the brunt of the damage. The IJC must compensate DEC and
the State for the destruction its gross mismanagement has wrought on the New York
communities on the shores of Lake Ontario.
PARTIES
12.

Plaintiff is the DEC, an Executive agency of the State of New York. The DEC is

authorized by the New York State Environmental Conservation Law to bring actions, suits or
proceedings in order to protect, preserve, regulate, and control water resources of the State of
New York. The DEC brings this action in its capacity as riparian property owner and to
vindicate and protect the well-being of New York State and its citizens and residents, including
those who have suffered harm as a result of the extensive flooding on Lake Ontario.
13.

Defendant the IJC is a binational entity created by the Boundary Waters Treaty of

1909 between the United States and Canada. Defendant is an international organization within
the meaning of the International Organizations Immunities Act, 22 U.S.C. § 288. See Executive
Order 9,972 (June 25, 1948).
14.

Pursuant to the Boundary Waters Treaty, Defendant is responsible for approving

and regulating the use of waters shared by Canada and the United States.
15.

Defendant has offices in the United States and in Canada. Defendant’s U.S.

office is located in Washington, D.C. Its Canadian offices are located in Windsor and Ottawa,
Ontario.
JURISDICTION AND VENUE
16.

This Court has jurisdiction over the subject matter of this action. 28 U.S.C.

§ 1605(a)(5) provides an exception to sovereign immunity for any claim “in which money
damages are sought against a foreign state for . . . damage to or loss of property, occurring in the
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United States and caused by the tortious act or omission of that foreign state or of any official or
employee of that foreign state or of any official or employee of that foreign state while acting
within the scope of his office or employment.” This exception applies to international
organizations. Jam v. Int’l Finance Corp., 139 S. Ct. 759 (2019). This claim is not based on
Defendant’s exercise or performance of a discretionary function. 28 U.S.C. § 1605(a)(5)(A).
17.

This Court also has personal jurisdiction over Defendant and authority to grant the

relief requested under the common law. CPLR § 302.
18.

Pursuant to C.P.L.R. § 503, venue is proper in Monroe County because a

substantial part of the events or omissions giving rise to the State’s claims occurred in Monroe
County. The State expended significant funds to respond to flooding in Monroe County, and
Monroe County residents also suffered property damage and other direct impacts from the
flooding.
FACTUAL ALLEGATIONS
A.

The Boundary Waters Treaty of 1909 and the International Joint
Commission

19.

Defendant is a binational entity created by the Boundary Waters Treaty of 1909

between the Governments of the United States and Canada.
20.

The Boundary Waters Treaty sets forth principles for the use and management of

waters shared by the two States, and establishes Defendant for the purpose of approving and
regulating the use of those waters.
21.

Article VIII of the Boundary Waters Treaty provides that Defendant “shall have

jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of”
the waters of either side of the boundary line.

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Article VIII provides that the United States and Canada “shall have, each on its

own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined
as boundary waters.”
23.

Article VIII further provides that “[t]he following order of precedence shall be

observed among the various uses enumerated hereinafter for these waters, and no use shall be
permitted which tends materially to conflict with or restrain any other use which is given
preference over it in this order of precedence: (1) Uses for domestic and sanitary purposes; (2)
Uses for navigation, including the service of canals for the purposes of navigation; (3) Uses for
power and for irrigation purposes.”
24.

Article VIII also provides that “[i]n cases involving the elevation of the natural

level of waters on either side of the line as a result of the construction or maintenance on the
other side of remedial or protective works or dams or other obstructions in boundary waters …
[Defendant] shall require, as a condition of its approval thereof, that suitable and adequate
provision, approved by it, be made for the protection and indemnity of all interests on the other
side of the line which may be injured thereby.”
25.

Pursuant to Article VII of the Boundary Waters Treaty, Defendant is composed of

six commissioners, three appointed by the Governor in Council of Canada with the advice of the
Prime Minister, and three appointed by the President of the United States with the advice and
consent of the Senate.
26.

Currently, the U.S. Commissioners are Jane Corwin (Chair of the U.S. Section),

Robert Sisson, and Lance Yohe. The Canadian Commissioners are Pierre Béland (Chair of the
Canadian Section), Henry Lickers, and Merrell-Ann Phare.

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Defendant designates special “boards” to be responsible for specific boundary

water issues. Members of these boards are appointed by Defendant and serve at Defendant’s
pleasure in their personal and professional capacities.
B.

The Moses-Saunders Power Dam and Plan 2014

28.

In 1952, the Governments of the United States and Canada applied to Defendant

for approval to develop the Moses-Saunders Power Dam, a major hydropower project on the St.
Lawrence River at the U.S.-Canadian border.
29.

The Moses-Saunders Power Dam supplies electricity to users in the United States

and in Canada. It is also the principal structure used to regulate outflows from Lake Ontario.

Source: Lake Ontario-St. Lawrence River Plan 2014, fig. 1,
https://legacyfiles.ijc.org/tinymce/uploaded/LOSLR/IJC_LOSR_EN_Web.pdf

30.

Defendant approved the Moses-Saunders project later in 1952, pursuant to its

authority under the Boundary Waters Treaty.

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In approving the project, Defendant found that “suitable and adequate provision is

made by the laws in Canada and by the Constitution and laws in the United States for the
protection and indemnity of all interests on either side of the International Boundary which may
be injured by reason of the construction, maintenance and operation of the works.”
32.

In 1953, Defendant created the International St. Lawrence River Board of Control

for the purpose of, among other things, ensuring that the discharge of water from Lake Ontario
and the flow of water through the International Rapids Section conformed with Defendant’s
directives.
33.

In 1956, Defendant issued a Supplementary Order of Approval for the

construction and operation of the Moses-Saunders Power Dam, amending its previous order of
approval. Throughout the late 1950s and early 1960s, Defendant issued successive sets of rules
to help determine how much water to release from Lake Ontario each week.
34.

Defendant also granted the Board of Control authority to deviate from the

regulation plan flow under certain conditions. From 1963 until 2016, the method of regulating
water releases from Lake Ontario was known as “Plan 1958-D with deviations,” or “Plan
1958DD.”
35.

In 1999, Defendant wrote to the U.S. Secretary of State and the Canadian Foreign

Minister, requesting the governments’ support in conducting a review of the regulation of the
Lake Ontario water levels.
36.

According to Defendant, such a review was necessary to determine whether the

regulations—by then in place for nearly four decades, and based on data and scientific
knowledge from the 1950s—could be “revised to better reflect the current needs of the users and

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interests of the system,” including by addressing “the annual flood discharge from the Ottawa
River, concerns of recreational boating, and environmental interests.”
37.

The two governments approved and appropriated funds for a study. This study

and subsequent negotiations and dialogue culminated more than 16 years later in a new proposed
regulation plan, called “Plan 2014.”
38.

Plan 2014 aims to “maintain beneficial uses for the key water-using interests

while returning the Lake Ontario-St. Lawrence River system to a more natural hydrological
regime, thereby helping to restore coastal and riverine ecosystems.”
39.

As Defendant explained, “[u]nlike [Plan 1958DD], which is not based on the

natural release, Plan 2014 rules start with the natural release, adjust it for supply conditions and
then modify it when necessary to protect the various interests and the uses in the order of
precedence of Article VIII of the Treaty.”1
40.

Specifically, Plan 2014 sets out a method for calculating the appropriate water

releases from Lake Ontario, based on historical data and actual conditions.
41.

The releases are also subject to specified “flow limits,” which place outer bounds

on the permissible releases from Lake Ontario in order to address specific conditions and
concerns.
42.

The “F limit” is the maximum flow to limit flooding on Lake St. Louis and near

Montreal. The “L Limit” is the maximum flow to maintain adequate levels and safe velocities
for navigation. The “I Limit” is the maximum flow for ice formation and stability, and the “M
limit” is the minimum limit flow to balance low levels of Lake Ontario and Lake St. Louis for

1

Lake Ontario-St. Lawrence River Plan 2014, at 20, ¶ 3.2.1,
https://legacyfiles.ijc.org/tinymce/uploaded/LOSLR/IJC_LOSR_EN_Web.pdf [hereinafter “Plan 2014”].

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purposes of navigation. The “J Limit” defines the maximum change in flow from one week to
the next.
43.

Plan 2014 permits greater fluctuations in water levels than did Plan 1958DD.

Defendant acknowledged that these fluctuations would increase erosion and flooding along the
Lake Ontario shoreline, but estimated that average coastal damages under Plan 2014 would
increase by only about $2.22 million annually as compared to Plan 1958DD. While the expected
average annual damages under Plan 1958DD were roughly $18.1 million, Defendant estimated
that the annual damages under Plan 2014 would increase to $20.37 million.2
44.

Defendant did not include in Plan 2014 any remuneration to shoreline property

owners for the millions of dollars in damage that it anticipated that Plan 2014 would cause.
45.

Thus, Plan 2014 also authorizes “major deviations” from the regulation plan in

response to extreme high or low water levels on Lake Ontario. Plan 2014 sets “trigger levels”
specifying the high and low water levels above or below which such deviations are permitted.3
The high water trigger levels are “those levels that would be expected to be exceeded 2 percent
of the time.” Only if the trigger levels are reached may Defendant deviate from the regulation
plan.
46.

Plan 2014 provides that “[i]n the event that Lake Ontario levels reach or exceed

extremely high levels, the works in the International Rapids Section shall be operated to provide
all possible relief to the riparian owners upstream and downstream.”
47.

In other words, while Plan 2014 sets water management protocols for non-

extreme conditions, once extreme conditions occur, Plan 2014 requires Defendant to “provide all
possible relief” to property owners on the shores of Lake Ontario.

2
3

Plan 2014, at 33 tbl. 3.
Plan 2014, at 72 tbl. C1.

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To implement Plan 2014, Defendant created the International Lake Ontario-St.

Lawrence River Board (“Board”). The Board is a subsidiary entity of Defendant, and has the
responsibility to “ensur[e] compliance with the Order of Approval pertaining to the regulation of
flows and levels of the St. Lawrence River, the regulation of the plan approved by the
Commission and any requirements or duties outlined in directives from the Commission.”4 The
Board reports at least semi-annually to Defendant.
49.

Defendant’s directive creating the Board stated that “[t]he Board shall perform

duties specifically assigned to it in the Order of Approval as well as those assigned to it by the
Commission directives.”
50.

Members of the Board are appointed by Defendant and serve at Defendant’s

pleasure. The Board has a minimum of ten members (an equal number from each country)
appointed for three year terms.
51.

Consistent with the 1956 Order of Approval, Defendant sought the assent of the

United States and Canada to the changes proposed in Plan 2014. The United States and Canada
consented to the changes.
52.

Defendant approved Plan 2014 on December 8, 2016.

53.

Plan 2014 went into effect on January 7, 2017.

C.

Severe Flooding in 2017 Devastates the Lake Ontario Shoreline and Causes
Extensive Harm to New Yorkers

54.

From January 2017 to May 2017, the Lake Ontario and St. Lawrence River basin

experienced unprecedented levels of precipitation. Areas upstream of Lake Ontario also

4

International Joint Commission, International Lake Ontario-St. Lawrence River Board Directive (Dec. 8, 2016),
https://ijc.org/sites/default/files/2019-04/LOSLRB-Directive-2016.pdf.

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received record precipitation, resulting in high water levels in Lake Erie, as well as an increased
amount of water entering Lake Ontario by way of the Niagara River.
55.

Throughout April 2017, Defendant adjusted outflows in accordance with Plan

2014’s F-limit rule.
56.

By the end of April 2017, the levels of Lake Ontario had already reached the

trigger level that would permit Defendant to deviate from Plan 2014 by increasing outflows from
Lake Ontario—and thus to provide relief from flooding on the Lake Ontario shoreline.
57.

However, Defendant did not deviate from Plan 2014, and instead continued to

follow Plan 2014’s F-limit rules.
58.

On May 2, 2017, Governor Cuomo declared a state of emergency for the eight

counties affected by the Lake Ontario flooding, including Monroe County.
59.

The Governor deployed equipment, response teams, and hundreds of thousands

of sandbags to the region to attempt to address the flooding.
60.

The Governor also requested assistance from the U.S. Army Corps of Engineers

to respond to the flooding.
61.

The State also formally appealed to Defendant to release additional water to lower

the water levels.
62.

Wet weather continued through May, but it was not until May 24 that Defendant

deviated from Plan 2014 in order to provide relief to riparian areas upstream of the dam.
63.

By the end of May 2017, the water level in Lake Ontario had exceeded the highest

level since records began nearly a century before in 1918.
64.

Lake Ontario water levels remained above the trigger levels until the last week of

August. Even then, the water levels remained well above average.

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The prolonged flooding was also disastrous for thousands of New York

businesses and residents along the Lake Ontario shoreline in Niagara, Orleans, Monroe, Wayne,
Cayuga, Jefferson, and St. Lawrence Counties.
66.

The DEC issued more than one thousand permits and authorizations for projects

to protect and restore the shoreline.
67.

The Great Lakes Adaptive Management (“GLAM”) Committee—a committee

created by Defendant in 2015 to monitor study regulation plans—surveyed Lake Ontario
residents about the effects of the 2017 flooding. Roughly 90% of New York respondents
reported some degree of flooding of their property. Around 71% of New York respondents
reported that the high water levels had caused erosion damage, including loss of vegetation, loss
of land, and damage to buildings and shore protection structures.5
68.

New York residents suffered greater damage as a result of the 2017 flooding than

did Canadian residents on the north shore of Lake Ontario.
69.

In the wake of the 2017 floods, DEC along with the State spent more than $100

million on shoreline repairs.
70.

This figure far exceeded the $20.37 million in annual damage that Defendant

estimated would result from Plan 2014.
71.

In a study published in May 2018, Defendant concluded that “the extreme

weather and water supply conditions were the primary factor in causing Lake Ontario water
levels to rise a record breaking 1.38 m (~4.5 ft) from the beginning of January to the end of
May.” However, Defendant also concluded that “[w]hile 2017 was an exceptional year, extreme

5

2017 High Water Levels: A Summary of Reported Impacts by Shoreline Property Owners on Lake Ontario and the
St. Lawrence River, Great Lakes-St. Lawrence River Adaptive Management Committee (April 2019),
https://ijc.org/sites/default/files/2019-08/Final_QuestionnaireFactSheet_20190815.pdf

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conditions have occurred in the past and are expected to occur again in the future.” Defendant
concluded that Plan 2014 did not itself cause the extreme water levels, but urged a “collaborative
approach” to addressing future flooding events.6
72.

Defendant’s GLAM Committee issued a report in November 2018 analyzing the

extreme flooding of 2017. Among other things, the Committee recommended further study of
the impacts of modifying the F and L limits, in order to “better understand and explain the
inherent tradeoffs and balances of the plan rules and limits under a broad range of extreme
conditions.”7
73.

The GLAM Committee also evaluated Plan 2014’s trigger levels. The GLAM

Committee concluded that “no significant reduction of 2017 water levels would have resulted
from any realistic adjustment of the H14 high trigger levels,” but noted that “[a] full analysis
beyond 2017 conditions has not yet been completed and is needed to assess the value of changes
to trigger levels under other extreme conditions than what occurred in 2017.”8
74.

By late 2018, therefore, Defendant was aware that its implementation of Plan

2014 had failed to prevent severe flooding along the Lake Ontario shoreline, and that further
study and analysis were needed to determine whether adjustments to the regulations and
parameters for water releases could help prevent such extreme flooding from occurring in the
future.
75.

Defendant was also aware that its delays in deviating from Plan 2014 once trigger

levels were reached had led to prolonged high water levels on the Lake Ontario shoreline.

6

Observed Conditions & Regulated Outflows in 2017, International Lake Ontario-St. Lawrence River Board (May
25, 2018), at 43, https://ijc.org/sites/default/files/2018-08/ILOSLRB_FloodReport2017.pdf
7
Summary of 2017 Great Lakes Basin Conditions and Water Level Impacts to Support Ongoing Regulation Plan
Evaluation, Great Lakes-St. Lawrence River Adaptive Management (GLAM) Committee (Nov. 13, 2018), at 157,
https://ijc.org/sites/default/files/2018-11/GLAM_2017_MainReport_FINAL-20181129_2.pdf.
8
Id. at 157.

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Nevertheless, Defendant did nothing to prevent a recurrence of the historic floods

of 2017.
77.

For example, Defendant could have taken active steps to anticipate and address

flooding, including by releasing more water from Lake Ontario in the fall of 2018 to allow for a
rise in water levels due to potentially heavy rain in the spring, as had occurred in 2017.
Defendant did not do so.
D.

Defendant Ignores the Lessons of 2017 and Fails To Prevent or Mitigate
Severe Flooding in 2019

78.

2019 brought another very wet winter and spring. With above-average rainfall

and significant melting snowpack across the region, Lake Ontario’s water levels began to rise yet
again.
79.

On February 23, 2019, Governor Cuomo wrote to Defendant noting the rise in

water levels and noting that “[u]pcoming weather patterns raise further concerns about potential
renewed flooding.” Based on New York’s experience with the devastating floods of 2017,
Governor Cuomo “urge[d] the International Joint Commission to use all means to maximize
outflows from the Lake Ontario system and reduce the risk for potential flooding this year.”9
80.

By March 1, 2019, Lake Ontario’s water levels were already 16 inches above the

normal average for that time of year.
81.

Based on its experience in 2017, when Defendant’s delayed response to rising

water levels caused severe flooding on Lake Ontario, even a minimal level of care would have
dictated that Defendant take early steps to reduce the water levels.

9

Governor Cuomo Issues Letter Calling on International Joint Commission to Maximize Lake Ontario Outflows,
Governor Andrew M. Cuomo (Feb. 23, 2019), https://www.governor.ny.gov/news/governor-cuomo-issues-lettercalling-international-joint-commission-maximize-lake-ontario.

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Defendant did not do so. Instead, on March 4, 2019, the Board issued a news

release stating that the outflows from Lake Ontario were being set in accordance with Plan 2014
and in consideration of the effects on interests throughout the Lake Ontario-St. Lawrence River
system.10
83.

Water levels continued to rise throughout March and April 2019.

84.

On April 29, 2019, the Commissioner of the DEC declared that “an emergency

situation exists in the counties of Cayuga, Jefferson, Monroe, Niagara, Orleans, Oswego and
Wayne, in DEC Regions 6, 7, 8 and 9 as a result of the damage that was caused by continued
high Lake Ontario water levels in late April and early May, 2019” and authorized the issuance of
general permits to allow for municipalities, public utilities, and individuals to undertake cleanup
and restoration work.11
85.

The New York State Office of Emergency Management mobilized extensive

resources to address the rising water levels. The State activated the State Emergency Operations
Center for 125 days to conduct operations across eight counties and hundreds of miles of
shoreline.
86.

State agency staff, including from the DEC and the New York National Guard,

fortified public and private shorefront property using water barriers and other equipment. The
State and DEC also distributed more than 1 million sandbags to counties and local
municipalities, including in Monroe County.

10

High Lake Ontario Outflows Continue, International Lake Ontario-St. Lawrence River Board (March 4, 2019),
https://ijc.org/en/loslrb/high-lake-ontario-outflows-continue.
11
State of New York, Department of Environmental Conservation, Emergency Declaration and Finding Pursuant to
ECL 70-0111(d) and 70-0116, In the Matter of Damage Caused by High Water Levels in Lake Ontario (April 29,
2019), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/2019_Lake_Ontario_Emergency_
Declaration_final_4_29_dtw.pdf.

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State, DEC, and local law enforcement entities also conducted daily wake

enforcement operations throughout the boating season to minimize wave action along the
shoreline.
88.

By May 10, 2019, the water levels had risen even further and reached the criterion

H14 trigger level, permitting Defendant to deviate from Plan 2014.
89.

With the Lake Ontario water levels having reached extreme high levels,

Defendant should have taken steps to “provide all possible relief to riparian owners upstream and
downstream” of the Moses-Saunders Power Dam.
90.

However, as in 2017, Defendant adhered to the rules set forth in Plan 2014.

Defendant did so even though that same course of action in 2017 had resulted in catastrophic
flooding on Lake Ontario.
91.

Defendant maintained that position even ten days later. On May 20, 2019, the

Board announced that, even though water levels were “above the criterion H14 level that applies
this time of year,” it had “decided to continue to adjust outflows according to the F-limit rules of
Plan 2014.”12
92.

That same day, on May 20, 2019, Governor Andrew Cuomo declared a state of

emergency in the eight lakefront counties affected by Lake Ontario flooding, including Monroe
County.13
93.

By June 2, 2019, Lake Ontario had risen to 75.90 meters, exceeding the record

peak of 75.88 meters set two years prior.

12

Lake Ontario outflows increasing again after Ottawa River peaks a second time, International Lake Ontario-St.
Lawrence River Board (May 20, 2019), https://ijc.org/en/loslrb/lake-ontario-outflows-increasing-again-after-ottawariver-peaks-second-time.
13
Governor Cuomo Declares State of Emergency for Eight Counties Impacted by Lake Ontario Flooding, Governor
Andrew M. Cuomo (May 20, 2019), https://www.governor.ny.gov/news/governor-cuomo-declares-state-emergencyeight-counties-impacted-lake-ontario-flooding.

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94.

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On June 8, 2019, Governor Cuomo wrote a letter to Defendant stating that “[w]ith

water levels in Lake Ontario now exceeding the historic high levels of 2017, immediate action
must be taken to deter flooding in the Lake Ontario-St. Lawrence River System.” Governor
Cuomo demanded that Defendant “immediately correct its water management protocols to avoid
damage to riparian owners.”14
95.

That same day, Defendant finally deviated from Plan 2014, increasing outflows

above the regulation plan’s “maximum L-Limit,” i.e., the threshold for commercial navigation.15
96.

By then, it was too late. Thousands of New Yorkers’ property had already been

damaged by the record high water levels.
97.

On June 13, 2019, outflows reached 10,400 cubic meters per second, the

maximum flow that was attained in 2017.16
98.

Greater outflows were possible and would have provided swifter relief to

communities upstream of the Moses-Saunders Power Dam.
99.

Had Defendant exercised even a minimal level of care, it would have increased

outflows. Nevertheless, Defendant declined to do so. On July 8, 2019, Defendant announced
that it had decided to maintain outflows at 10,400 cubic meters per second, despite explicitly
recognizing that “[o]utflows at maximum system capacity for 4 weeks would hasten the recovery
of Lake Ontario in the short term.” Defendant stated that increasing outflows beyond 10,400
cubic meters per second would “require the Seaway Corporations to shut down shipping on the

14

Governor Cuomo Issues Letter to the International Joint Commission Demanding Immediate Action in Response
to Lake Ontario Flooding, Governor Andrew M. Cuomo (June 8, 2019),
https://www.governor.ny.gov/news/governor-cuomo-issues-letter-international-joint-commission-demandingimmediate-action-response.
15
Lake Ontario outflows to be increased above navigation limit, International Lake Ontario-St. Lawrence River
Board (June 8, 2019), https://ijc.org/en/loslrb/lake-ontario-outflows-be-increased-above-navigation-limit.
16
See Lake Ontario outflows to be maintained above navigation limit, International Lake Ontario-St. Lawrence
River Board (June 17, 2019), https://ijc.org/en/loslrb/lake-ontario-outflows-be-maintained-above-navigation-limit

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St. Lawrence River between St. Lambert and Cape Vincent” and would cause disruption to the
economy.17
100.

Despite extreme water levels, Defendant put the interests of the shipping industry

before the interests of individual New Yorkers along the Lake Ontario shoreline, who saw their
homes and businesses submerged for the second time in the three years of Plan 2014’s operation.
101.

Defendant’s decision directly conflicted with Plan 2014’s mandate that, “in the

event that Lake Ontario water levels reach or exceed extremely high levels, the works in the
International Rapids Section shall be operated to provide all possible relief to the riparian owners
upstream and downstream.” Defendant’s failure to adhere to its own directive was a breach of
its duty that directly resulted in prolonged damages to New York.
102.

In late September 2019, water levels were still above high water trigger levels,

and well above historical averages for the time of year.
E.

Defendant’s Failure To Take Steps To Lower the Water Levels in Lake
Ontario Caused Serious Harm To New York and Its Citizens

103.

As a result of Defendant’s failure to take steps to prevent and mitigate the

flooding in 2019, DEC, the State and New York citizens on the Lake Ontario shoreline have
suffered physical and economic harm.
104.

Despite DEC and the State’s best efforts to respond to the flooding, due to

Defendant’s grossly negligent acts and omissions, the 2019 floods caused significant physical
damage to DEC and State property on Lake Ontario, including serious destruction of, or damage
to, docks, roadways, retaining walls, and culverts, and substantial erosion and loss of vegetation.
The physical damage will cost at least $2.3 million to repair.

17

Record Outflows to Continue Through the Summer, International Lake Ontario-St. Lawrence River Board (July 8,
2019), https://ijc.org/en/loslrb/record-outflows-continue-through-summer

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105.

RECEIVED NYSCEF: 10/09/2019

During the 2019 Lake Ontario flood events, DEC issued 205 permits to allow

homeowners and businesses to repair damage caused by the floods, including the repair and
replacement of erosion protection structures, the stabilizing of dwellings, repair of breakwalls,
and removal of debris, and the repair or reconstruction of docks, catwalks and floats.
106.

The State has allocated up to $20 million to assist homeowners in affected

counties who have suffered flood damage. The State will provide residents in those counties up
to $50,000 to help offset damage to their homes.
107.

To date, Defendant’s gross negligence has forced the DEC along with the State to

spend more than $22 million to respond to the flooding on the Lake Ontario shoreline, by, among
other things, deploying equipment and sandbags to the area, fortifying public and private
shoreline properties, convening task forces and emergency response teams, to coordinate with
federal and local agencies, and conducting wake enforcement patrols. Specifically, to date the
DEC has expended approximately $570,000 towards labor and materials in responding to the
recent flooding.
108.

The State has also introduced the Lake Ontario Resiliency and Economic

Development Initiative (“REDI”), to improve New York communities’ resilience to flooding at
erosion. As part of the REDI Initiative, the State has committed $300 million to fund shoreline
emergency and relief efforts, including redevelopment and improvements to infrastructure to
address flood risks in the area.
CAUSES OF ACTION
FIRST CLAIM FOR RELIEF
Negligence
109.

The DEC realleges and incorporates by reference each and every allegation in the

paragraphs above as if the same were fully set forth herein.

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110.

INDEX NO. UNASSIGNED
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Plan 2014 imposed on Defendant—the entity responsible for regulating the water

flow across the Moses-Saunders Power Dam and the releases from Lake Ontario—a duty to
operate the works in the International Rapids Section to provide all possible relief to New York
citizens on the Lake Ontario shoreline in the event of extreme water levels on Lake Ontario.
111.

After the catastrophic floods of 2017, Defendant knew or should have known that

extreme water levels comparable to or worse than those seen in 2017 were likely to recur.
112.

Defendant also knew or should have known that deviations from Plan 2014 once

trigger levels were reached were necessary to provide all possible relief to DEC, the State, and
New York citizens on the Lake Ontario shoreline.
113.

Defendant breached its duty by failing to take sufficient steps to protect the

interests of New York property owners, including the DEC, on the Lake Ontario shoreline, in
conflict with its own directive.
114.

As a foreseeable consequence of Defendant’s breach of its duty, DEC, the State,

and New York citizens have suffered unnecessarily prolonged flooding and extensive property
damage.
115.

As a foreseeable consequence of Defendant’s breach of its duty, the State along

with DEC has been forced to spend significant resources to repair physical damage to the Lake
Ontario shoreline.
SECOND CLAIM FOR RELIEF
Private Nuisance
116.

The DEC realleges and incorporates by reference each and every allegation in the

paragraphs above as if the same were fully set forth herein.
117.

During the flooding of 2019, Defendant failed to deviate from the regulation plan

even after water levels from Lake Ontario had reached the trigger levels for such deviations,

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requiring Defendant to provide all possible relief to riparian owners upstream and downstream of
the Moses-Saunders Power Dam.
118.

Defendant did so even though that same course of conduct had failed to provide

all possible relief to property owners on Lake Ontario in 2017.
119.

During the flooding of 2019, Defendant failed to increase outflows above 10,400

cubic meters per second, even though doing so would have provided swifter relief to property
owners on Lake Ontario.
120.

By failing to operate the Moses-Saunders Power Dam to provide all possible

relief to riparian owners upstream of the dam, Defendant caused unnecessary extreme flooding
on the Lake Ontario shoreline in 2019.
121.

Based on the severe flooding that had resulted from the same course of conduct in

2017, Defendant was or should have been substantially certain that its conduct in 2019 would
cause an invasion of the State’s interest in the use and enjoyment of its land.
122.

Based on the severe flooding that had resulted from the same course of conduct in

2017, Defendant knew that it was substantially certain that its conduct in 2019 would cause an
invasion of the interests of hundreds of New York citizens in the use and enjoyment of their land.
123.

Defendant’s intentional invasion of the property interests of the DEC, the State

and its citizens was unreasonable.
124.

Defendant’s intentional invasion of the property interests of the State and

hundreds of its citizens was the actual and proximate cause of unnecessary, widespread, and
extreme flooding on the Lake Ontario shoreline in 2019, including on DEC and State property.
125.

The DEC, State and hundreds of its citizens suffered serious harm, including

erosion, loss of vegetation, extensive property damage, and severe economic damage.

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THIRD CLAIM FOR RELIEF
Trespass
126.

The DEC realleges and incorporates by reference each and every allegation in the

paragraphs above as if the same were fully set forth herein.
127.

During the flooding of 2019, Defendant failed to deviate from the regulation plan

even after water levels from Lake Ontario had reached the trigger levels for such deviations.
128.

Defendant did so even though that same course of conduct had failed to provide

all possible relief to property owners on Lake Ontario in 2017.
129.

During the flooding of 2019, Defendant refused to increase outflows above

10,400 cubic meters per second, even though doing so would have provided swifter relief to
property owners on Lake Ontario.
130.

By failing to operate the Moses-Saunders Power Dam to provide all possible

relief to riparian owners upstream of the dam, Defendant caused unnecessary extreme flooding
on the Lake Ontario shoreline in 2019.
131.

Defendant’s acts and omissions resulted in severe flooding of property along the

Lake Ontario shorefront, including property owned by DEC and the State, as well as private
property owned by New York citizens.
132.

Defendant failed to increase outflows from Lake Ontario to lower the water levels

and abate flooding along the Lake Ontario shorefront.
133.

New York citizens did not authorize Defendant to invade their property in this

way, and the invasions were otherwise unjustified.
134.

Neither DEC nor the State authorized Defendant to invade its property in this

way, and the invasions were otherwise unjustified.

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